United States v. Ashleigh Greybull , 542 F. App'x 595 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30276
Plaintiff - Appellee, D.C. No. 4:12-cr-00013-SEH
v.
MEMORANDUM *
ASHLEIGH MARIE GREYBULL,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted October 15, 2013 **
Before: FISHER, GOULD, and BYBEE, Circuit Judges.
Ashleigh Marie Greybull appeals from the district court’s judgment and
challenges the 18-month sentence imposed following her guilty-plea conviction for
theft from an Indian tribal organization, in violation of 18 U.S.C. §§ 2, 1163. We
have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Greybull contends that the district court erred by imposing a two-level
increase for obstruction of justice under U.S.S.G. § 3C1.1. We review the district
court’s characterization of a defendant’s conduct as obstruction de novo. See
United States v. Manning, 704 F.3d 584, 585 (9th Cir. 2012) (per curiam). The
district court imposed the enhancement on the ground that Greybull provided “a
materially false statement to a law enforcement officer that significantly obstructed
or impeded the official investigation or prosecution of [her] offense.” U.S.S.G.
§ 3C1.1 cmt. n.4(G). We conclude that the record is insufficient to support the
enhancement on this basis. First, a false denial of guilt not made under oath cannot
provide a basis for the enhancement. See U.S.S.G. § 3C1.1 cmt. n.2; United States
v. Beardslee, 197 F.3d 378, 389-90 (9th Cir. 1999). The record does not reflect
which of Greybull’s statements, if any, went beyond a denial of guilt. Second, the
record is inconclusive as to whether the investigation of Greybull’s offense would
have been any different absent her false statements. Accordingly, we cannot
determine whether her statements “obstructed or impeded” the investigation. See
United States v. McNally, 159 F.3d 1215, 1217 (9th Cir. 1998) (to provide a basis
for an obstruction of justice enhancement, a false statement to an investigating
officer “must constitute an actual impediment”).
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For the foregoing reasons, we vacate the sentence and remand for
resentencing on an open record.
The mandate shall issue forthwith.
VACATED and REMANDED for resentencing.
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